Supreme Court Releases for August 4, 2017

The Kansas Supreme Court released the following published decisions today: ​

Appeal No. 111,599: Mark Bullock v. BNSF Railway Company
Bullock sued his employer, BNSF Railway Company, to recover for injuries he sustained after slipping on diesel fuel spilled by a coworke-r. A Wyandotte County jury awarded Bullock $1,720,000 in damages, and BNSF appealed arguing evidence was improperly admitted that BNSF disciplined the coworker. The Supreme Court agreed with BNSF and remanded for a new trial because the evidence of employee discipline was prohibited by state law. A state statute, K.S.A. 60-451, bars evidence of subsequent remedial measures in certain circumstances for public policy reasons. Barring evidence of subsequent remedial measures encourages defendants to remedy hazardous conditions without fear that their actions will be used against them in a lawsuit. The court also held that Bullock's counsel committed error during closing argument by encouraging the jury to decide the case based on subjective feelings of what amounts to justice instead of the rule of law provided in the instructions. Counsel also improperly appealed to community interests by arguing a verdict for BNSF could negatively impact the community. Justice Marla Luckert did not participate in the decision.

Appeal No. 110,277: State of Kansas v. Marcus D. Reed
In an opinion written by Justice Caleb Stegall, the court affirmed the Sedgwick County District Court's denial of Reed's motion to withdraw his plea. At the time Reed was convicted of his qualifying sex offense, the Kansas Offender Registration Act (KORA), K.S.A. 22-4901 et seq., required him to register for 10 years. Shortly before Reed's registration period terminated, the Legislature added a provision to the Kansas Offender Registration Act tolling the registration period of an offender who was noncompliant with it. During the 10 years following his conviction, Reed was noncompliant for more than four years, which extended his registration period. During that extended period, Reed pled guilty to two registration violations. On appeal, Reed claimed his plea should be withdrawn because retroactive application of the tolling provision violates the ex post facto clause of the United States Constitution. However, the majority held that since Kansas Offender Registration Act registration for sex offenders is not punishment, no ex post facto violation occurred, and the tolling provision retroactively applies to Reed. Justices Johnson, Beier, and Rosen dissented, concluding that the Kansas Offender Registration Act registration is punishment and its retroactive application violates the ex post facto clause.

Appeal No. 110,520: State of Kansas v. Steven Meredith
In an opinion written by Justice Caleb Stegall, the court affirmed the Riley County District Court's order that Meredith is subject to the current requirements of the Kansas Offender Registration Act, K.S.A. 22-4901 et seq. When Meredith committed his qualifying drug offense in 2009, the Kansas Offender Registration Act required him to register for 10 years. However, 2011 amendments to the Kansas Offender Registration Act extended his registration period to 15 years. On appeal, Meredith argued that retroactive imposition of the 15-year registration period constitutes punishment, which violates the ex post facto clause of the United States Constitution. The majority of the court held that the Legislature intended the Kansas Offender Registration Act to be nonpunitive, and Meredith failed to demonstrate by the clearest proof that registration under the act has a punitive effect on drug offenders. Therefore, the majority determined that no ex post facto violation occurred and the 15-year registration period applies to Meredith. Justices Beier, Rosen, and Johnson dissented, concluding that Kansas Offender Registration Act registration is punishment and its retroactive application to Meredith under the 2011 amendments violates the ex post facto clause.

Appeal No. 114,417: State of Kansas v. Dang Sean
In a unanimous decision written by Senior Judge Michael Malone, the Supreme Court affirmed Sean's convictions in Sedgwick County District Court for first-degree premeditated murder and kidnapping. The unanimous court concluded that Sean had not properly preserved his argument that the admission of statements he made during an interrogation violated his Fifth Amendment right to counsel; that the prosecutor erred by making comments regarding Sean's retention of attorney and that the court would assume error in the prosecutor's comments regarding an alibi, but that both errors were harmless; that Sean did not properly preserve his arguments regarding erroneous admission of bad act evidence; that the admission of certain statements did not present grounds for reversal because the statements were either not hearsay or their admission was harmless; that the trial court did not abuse its discretion in denying Sean's motion for mistrial; that even if the trial judge erred in limiting Sean's cross-examination of a witness, it was not reversible error; and that Sean did not properly preserve his argument regarding improper sympathy evidence. The court ultimately held that the cumulative effect of the actual and assumed errors was not so great as to warrant reversal.

Appeal No. 113,409: State of Kansas v. Jason A. Jones
In a unanimous decision written by Senior Judge Michael Malone, the Supreme Court affirmed Jones' convictions in Sedgwick County District Court for first-degree premeditated murder, first-degree felony murder, and aggravated kidnapping. The unanimous court concluded that even if the admission of certain forensic test results violated Jones' Confrontation Clause rights, the admission was harmless. Jones also argued that the admission of certain out-of-court statements under the coconspirator exception to the hearsay rule was error because the trial judge had not made required findings on the record before admitting the statements. The court held that Jones had not preserved this argument with a contemporaneous objection at trial, and that in the absence of any objection, the court presumed the trial court made any required findings before admitting evidence. Jones also argued the admission of the statements violated his Confrontation Clause rights. The court disagreed, explaining that statements made by coconspirators are nontestimonial and therefore the admission of the statements did not implicate Jones' Confrontation Clause rights.